Nau v. Colorado Springs

• Court: Colorado Court of Appeals
• Decided: December 11, 2025
• Docket: 25CA0010
• Status: Unpublished

Opinion

25CA0010 Nau v Colorado Springs 12-11-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0010 El Paso County District Court No. 24CV30560 Honorable Gregory R. Werner, Judge

James J. Nau; Westside Watch, a nonprofit corporation; and Integrity Matters, a nonprofit corporation,

Plaintiffs-Appellants,

v.

City of Colorado Springs, a home rule City and Colorado municipal corporation, acting through the city council of the City of Colorado Springs,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division V Opinion by JUDGE YUN Freyre and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 11, 2025

Katherine Gayle, Colorado Springs, Colorado, for Plaintiffs-Appellants

Wynetta Massey, City Attorney, Brian Stewart, Senior Attorney, Colorado Springs, Colorado, for Defendant-Appellee ¶1 In this C.R.C.P. 106(a)(4) action, the plaintiffs, James J. Nau,

Westside Watch, and Integrity Matters, appeal the district court’s

denial of their claim to set aside the decision of the Colorado

Springs City Council (the City Council) approving the rezoning of a

parcel of property (the property) and construction of a residential

development (the project). We affirm.

I. Background

¶2 The property was annexed into the City of Colorado Springs

(the City) in 1982 and originally zoned for residential use. In 2003,

the City purchased the property from an investor with the plan of

developing it into a sports complex, and to that end, the property

was rezoned from residential to public park use. But the City

abandoned the plan in 2016, and, in 2022, it agreed to sell the

property back to the original investor. As part of that transaction,

the City sought to rezone the property back to residential use, while

the investor sought approval of a land use plan for the project. In

February 2024, after a hearing, the City Council approved both the

rezoning and the land use plan.

¶3 The plaintiffs — a resident of the City and two nonprofit

corporations — sought review of the City Council’s decision in

1 district court under Rule 106(a)(4). After finding that competent

evidence in the record supported the City Council’s decision, the

district court dismissed the complaint.

¶4 The plaintiffs now appeal.1

II. Analysis

¶5 The plaintiffs contend that the district court erred by denying

their motions to amend their opening brief and to supplement the

record. They further contend that the City Council abused its

discretion by reaching a decision that was not supported by

competent evidence, failing to consider the effect of the project on

the Preble’s meadow jumping mouse, and engaging in “illegal spot

zoning.”

A. Denial of Plaintiffs’ Motion to Amend Opening Brief

¶6 The plaintiffs contend that the district court erred by denying

their motion to amend the opening brief for their Rule 106(a)(4)

motion. We disagree.

1 The plaintiffs’ opening brief includes a request for oral argument.

However, under C.A.R. 34(a), “[a] request for oral argument must be made in a separate document entitled ‘request for oral argument.’” Because the plaintiffs’ request does not comply with the appellate rules, we deny it.

2 ¶7 A district court has discretion over how to manage its docket

and move cases forward. Antolovich v. Brown Grp. Retail, Inc.,

183 P.3d 582, 592 (Colo. App. 2007). A district court abuses its

discretion “when its decision is manifestly arbitrary, unreasonable,

unfair, or based on a misapplication of the law.” Black v. Black,

2020 COA 64M, ¶ 118.

¶8 The plaintiffs submitted their opening brief on August 21,

2024, and the district court gave the City Council twenty-one days

to respond. Fourteen days later, the plaintiffs moved to amend

their opening brief “for clarity and readability.” Their motion stated

that the changes were “stylistic and editorial” and that they were

“not raising any new matters of law or facts.” The district court

denied the amendment, reasoning that it would not prejudice the

plaintiffs, since they did not seek to address new facts or matters of

law. On the other hand, the court reasoned, granting the

amendment would prejudice the City Council, which “may have

been working on [its] response,” by requiring it to respond to a new

brief.

3 ¶9 We discern no abuse of discretion. Rather, the district court

appropriately considered the potential prejudice to each party and

reached a reasoned decision.

¶ 10 We are not persuaded otherwise by the plaintiffs’ argument

that the denial of the amendment violated C.R.C.P. 15, which

provides that “[a] party may amend his pleading once as a matter of

course at any time before a responsive pleading is filed.” An

opening brief is not a pleading. See C.R.C.P. 7 (The pleadings are “a

complaint and answer; a reply to a counterclaim . . . ; an answer to

a cross-claim . . . ; a third-party complaint . . . ; a third-party

answer . . . ; and . . . a reply to an affirmative defense. No other

pleading shall be allowed, except upon order of court.”).

B. Denial of Plaintiffs’ Motion to Supplement Record

¶ 11 The plaintiffs contend that the district court erred by denying

their motion to supplement the record with materials related to

(1) “the [International Fire Code] amendment process” and (2) a

previous City Council hearing regarding a different proposed

housing development (Kettle Creek). We disagree.

4 ¶ 12 We review the district court’s ruling on a motion to

supplement the record for an abuse of discretion. Foothills Park &

Recreation Dist. v. Bd. of Cnty. Comm’rs, 2024 COA 62, ¶ 22.

¶ 13 Rule 106(a)(4) review “shall be . . . based on the evidence in

the record before the defendant body or officer.” C.R.C.P.

106(a)(4)(I); see Whitelaw v. Denv. City Council, 2017 COA 47, ¶ 10

n.3 (“[O]ur review is based solely on the record that was before the

City Council.”). Because the materials related to the International

Fire Code amendment process and the Kettle Creek hearing were

not presented to the City Council as part of this case, the district

court did not abuse its discretion by denying the plaintiffs’ motion

to supplement the record.

C. Competent Evidence to Support Decision

¶ 14 The plaintiffs contend that the City Council’s decision was not

supported by competent evidence. Specifically, they argue that

there was no evidence that the project’s residents could safely

evacuate in the event of a wildfire. We are not persuaded.

1. Standard of Review

¶ 15 “Because an appellate court sits in the same position as the

district court when reviewing an agency’s decision under C.R.C.P.

5 106(a)(4), appellate review of the district court’s decision is de

novo.” Whitelaw, ¶ 8. Like the district court, we “must uphold the

decision of the governmental body unless there is no competent

evidence in the record to support it.” Yakutat Land Corp. v. Langer,

2020 CO 30, ¶ 20 (citation omitted). “No competent evidence”

means that “the ultimate decision of the administrative body is so

devoid of evidentiary support that it can only be explained as an

arbitrary and capricious exercise of authority.” Id. at ¶ 21 (citation

omitted).

¶ 16 In reviewing a zoning decision, we may not reweigh the

evidence or substitute our judgment for that of the zoning

authority. Stor-N-Lock Partners #15, LLC v. City of Thornton, 2018

COA 65, ¶ 33. Rather, “we must accept the relative weight given to

conflicting evidence by the governmental entity.” Id.

2. Discussion

¶ 17 Under section 7.5.704.D of the City’s municipal code, an

application for rezoning is subject to certain approval criteria,

including that “[t]he rezoning will not be detrimental to the public

interest, health, safety, convenience, or general welfare.” Colo.

Springs City Code § 7.5.704.D.2. The plaintiffs argue that there

6 was no competent evidence in the record to support a finding that

the project would not be detrimental to public health and safety.

Specifically, they argue that the City Council overlooked

“overwhelming, uncontradicted expert consensus” that the project

could not be safely evacuated in the event of a wildfire.

¶ 18 However, the plaintiffs do not cite any expert testimony in the

record offering an opinion that the residents of the project could not

safely evacuate. See O’Quinn v. Baca, 250 P.3d 629, 632 (Colo.

App. 2010) (parties should not expect the court to peruse the record

without the help of pinpoint citations). To the contrary, the City’s

fire marshal testified that the risk of a major wildfire in the area

was “very minimal.” He further testified that developing the

property into homes with irrigated yards, deciduous trees, and

paved driveways and streets would reduce the threat of a wildfire.

Finally, he testified that, because of the area’s low fuel load, he

believed residents of the project would be able to evacuate safely,

explaining as follows:

In this part of the City, which is why I say I don’t have any significant concerns — I didn’t say we won’t have fires. What I’m saying is I don’t see a gross life risk to any of the potential grass fires we could have up in that area,

7 regardless of people, if they’re stayed [sic] and they’re queued in their cars waiting to get out. I think they’re going to be fine.

That’s not a guarantee. I am not promising anything, but I don’t see a reasonable risk that we should be that concerned about for even a little bit of a delay to get out of there. That is my professional opinion.

¶ 19 In addition, the investor presented evidence that the project

would be surrounded by an open space buffer, further mitigating

wildfire concerns, and that the project’s egress road was wide

enough to accommodate four lanes of vehicles exiting

simultaneously in the event of an evacuation.

¶ 20 The record shows that the City Council members carefully

considered fire safety concerns and found the evidence addressing

those concerns to be persuasive. One councilmember remarked

that “[t]here is no forest here. That’s the thing, we don’t have a

large fire load. . . . [I]t’ll actually be more protective with the

development than it would, leaving it the way it is.” Another noted

that “this is not a WUI [wildland urban interface] situation. This is

not a place where we’ve got large-scale fuel for . . . a major fire

event. And . . . our expert, in the form of our Fire Marshal, has

given us his expert opinion.” And two councilmembers noted that

8 the significant amount of existing residential and commercial

development in the area indicated that much of the fuel load had

already been removed.

¶ 21 Accordingly, because there was evidence in the record to

support the City Council’s finding that the project would not be

detrimental to public health and safety, we must uphold its

decision. See Yakutat, ¶ 20.

¶ 22 We are not swayed by the plaintiffs’ arguments that (1) the fire

marshal’s testimony before the City Council contradicted his earlier

testimony before the City’s Planning Commission; (2) the City

Council misinterpreted the International Fire Code; or (3) the City

Council president acknowledged that the project would be

detrimental to public health and safety.

¶ 23 First, although the plaintiffs argue that the fire marshal

“[r]everse[d] his position at the Planning [Commission] and

impeach[ed] himself,” they do not cite any testimony by the fire

marshal before the Planning Commission.

¶ 24 Second, the plaintiffs do not cite or interpret any provisions of

the International Fire Code. We thus cannot address their

argument that the “City relied on [a] misinterpretation and

9 misapplication of the [International Fire Code].” See In re Marriage

of Vittetoe, 2016 COA 71, ¶ 39 (we do not consider arguments

presented in a perfunctory and undeveloped manner).

¶ 25 Third, the plaintiffs argue that “the City knowingly approved a

development that failed to meet safety standards” because, after

hearing evidence submitted in opposition to the project, the City

Council president remarked:

[W]e make this decision based upon the criteria. And there’s a list of criteria. And . . . what I have heard this evening tells me that the criteria has been fulfilled, with maybe the exception of the one about a detriment to the safety, health, and convenience of the community.

And for most things that we have to vote on, it typically boils down to that. So we have to make . . . a decision about whether we support the [investor] and this project or we don’t.

¶ 26 Notably, the president made this statement before hearing the

fire marshal’s testimony. Further, the president made it clear that

the health and safety of the community was his “number one”

concern, a position echoed by other councilmembers. As quasi-

judicial decision-makers, the councilmembers are entitled to the

presumption that they made those statements with honesty and

10 integrity. Whitelaw, ¶ 11. The president’s acknowledgment of

testimony from opponents of the project does not demonstrate an

abuse of discretion by the City Council. See id. at ¶ 60 (no abuse of

discretion by the City Council where “[t]he lengthy deliberations

show[ed] that Council members discussed the criteria and evidence

in the record, including testimony presented by both opponents and

proponents at the hearing”).

D. Preble’s Meadow Jumping Mouse

¶ 27 The plaintiffs contend that the City Council violated the federal

Endangered Species Act, 16 U.S.C. §§ 1531-1544, by “fail[ing] to

consider environmental impacts to the Preble’s meadow jumping

mouse.” But they do not cite to any portion of the record where this

issue was raised with the City Council. Nor do they cite or interpret

any provision of the Endangered Species Act.

¶ 28 When reviewing an agency’s decision under C.R.C.P. 106(a)(4),

we may address only “issues that were properly presented for

determination by the administrative agency.” Abromeit v. Denv.

Career Serv. Bd., 140 P.3d 44, 53 (Colo. App. 2005). Arguments not

raised in administrative proceedings are not preserved for appellate

11 review. Id. Accordingly, like the district court, we do not address

this issue.

E. Spot Zoning

¶ 29 The plaintiffs contend for the first time on appeal that the City

Council abused its discretion because its “rezoning decision

constitutes illegal spot zoning.” “Spot zoning examines ‘whether the

change in question was made with the purpose of furthering a

comprehensive zoning plan or [was] designed merely to relieve a

particular property from the restrictions of the zoning regulations.’”

Whitelaw, ¶ 63 (quoting Clark v. City of Boulder, 362 P.2d 160, 162

(Colo. 1961)). Because arguments not raised in administrative

proceedings are not preserved for appellate review, Abromeit,

140 P.3d at 53, we do not address the plaintiffs’ spot zoning

contention.

F. Attorney Fees

¶ 30 The plaintiffs request appellate attorney fees in a single

sentence of their opening brief: “[The plaintiffs] respectfully request

that this Court . . . award costs and attorney fees as permitted by

law.” But C.A.R. 39.1 provides that “the party claiming attorney

fees must include a specific request” and “explain the legal and

12 factual basis” for an award of fees. The plaintiffs do not provide any

factual recitation or legal authority for their request. Accordingly,

we will not consider it.

III. Disposition

¶ 31 The judgment is affirmed.

JUDGE FREYRE and JUDGE PAWAR concur.